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extra benefits set forth in NCAA Constitution Article 3-1-(g)-(6) are of a different order of magnitude than any of the violations found by the NCAA concerning the three student-athletes.

The Eighth Circuit's decision that substantive due process has been afforded the student-athlete rests on its application of the "void for vagueness" doctrine announced in Esteban that codes of general conduct are permissible to University disciplinary rules and regulations, a standard which the Seventh Circuit has rejected. This conflict among the Circuits has created an uncertainty in the law which this Court should resolve particularly where as here, the NCAA actions are designed as punishment and not part of the educational process the underlying rational of Esteban.28 This Court should review this case to resolve the uncertainty existing in the law at this time in a manner consistent with its previously announced principles.

28 Supra, at 37.

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CONCLUSION

The decision below presents this Court with substantial questions on the rights of the University of Minnesota to afford both procedural and substantive due process of law to its student-athletes as well as the proper scope of judicial review of such action. Accordingly, it is respectfully submitted that this petition for a writ of certiorari should be granted.

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 77-1028

REGENTS OF THE UNIVERSITY OF MINNESOTA, ET AL.,

VS.

Appellees,

THE NATIONAL COLLEGIATE ATHLETIC ASSOCI

ATION,

Appellant.

Appeal from the United States District Court for the District of Minnesota

Submitted: May 19, 1977

Filed: August 2, 1977

Before VAN OOSTERHOUT, Senior Circuit Judge, BRIGHT and WEBSTER, Circuit Judges

VAN OOSTERHOUT, Senior Circuit Judge.

This is an interlocutory appeal, pursuant to 28 U.S.C. §1292(a)(1), from an order of the United States District Court for the District of Minnesota granting plaintiff Regents of the University of Minnesota, a corporate entity

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commonly and herein referred to as the University, and certain University personnel a preliminary injunction directing the defendant National Collegiate Athletic Association (the Association) to lift an indefinite probation imposed on the University's athletic teams and to refrain from imposing further sanctions on the University until the legal dispute between the parties is resolved on the merits.

The dispute arises out of the University's refusal to declare student basketball players Michael Thompson, David Winey and Philip Saunders ineligible. The University, predicating its action primarily upon 42 U.S.C. §1983 and 28 U.S.C. §1343(3), maintains in essence that it could not declare the students ineligible consistently with its alleged constitutional duty to afford the students due process of law and that the Association, in seeking to require the University to declare the students ineligible and in imposing sanctions upon the University because it refused to do so, has interfered with that duty.' The Association maintains, inter alia, that the University could have declared the students ineligible consistently with due process and that it was contractually bound to do so under certain Association rules.

The district court, in an opinion reported at 422 F. Supp. 1158 (D. Minn. 1976), concluded that the University had shown a strong probability of success on the merits and that it would be irreparably harmed if a preliminary injunction were not issued. It accordingly issued the preliminary injunction, which the Association now appeals.

Because we disagree with the district court's conclusion that the University has shown a strong probability of success on the merits, we dissolve the preliminary injunction.

'Thompson, Winey and Saunders as amici curiae have filed a brief advancing arguments similar to those advanced by the University.

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I.

The pertinent facts are largely undisputed and commendably documented. They are, however, extensive. We emphasize at the outset that our review of the record serves only to facilitate our determination of the likely outcome when the matter is ultimately tried and is not intended as a complete and definitive recitation of the controlling facts. The district court on remand will of course retain its normal factfinding authority, including the authority to receive such evidence, whether or not in the present record, as the parties may properly offer.

A. The NCAA and pertinent NCAA rules.

The NCAA is an unincorporated association of approximately 830 members. Its active members are four-year colleges and universities located throughout the nation, of which approximately half are governmentally supported. Association policies are established by its members at annual conventions and are directed between conventions by an elected eighteen-member Council. The Association publishes annually a manual which includes, inter alia, its constitution and bylaws, official interpretations thereof and enforcement procedures. The University of Minnesota is a member institution.

The Association does not itself declare student-athletes ineligible, but its rules do require member institutions to take such action in specified circumstances. Under Assoication constitution 4-2-(a), members agree "[t]o administer their athletic programs in accordance with the Constitution, the Bylaws and other legislation of the Association [.]" Official interpretation 18, immediately following this constitutional provision in the manual, states:

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